Google appears set to play a leading role in the latest push for passage of patent reform legislation. The company is a member of the Coalition for Patent Fairness, an IT-heavy patent reform lobbying group, and has publicly called for significant reform on company blogs. This comes as no surprise, of course – the IT industry has been calling for reform for several years and Google is certainly growing into its own as a leader in that industry, in several regards.

Google is a special case, though, and its call for patent reform deserves heightened scrutiny for at least two reasons.

First, Google the company has existed for only ten years

The #1 result for a Google search on “when was Google started” points us to the company’s ‘Milestones‘ page, and the answer: September, 1998. So, at the time of writing this post, the company has been operating for about 10.5 years – a period of time that is significantly shorter than the term of a single United States Patent.

This lack of a lengthy history should not force the company to the sidelines in the reform debate, of course. Indeed, a company new to the game is uniquely positioned to provide valuable insight on the system and its impact on growth and development.

But, the company’s decade-long lifespan should always serve to provide a bit of perspective on any time-based rationales it offers in support of reform. “Trends” and “developments” advanced by the company as indications of a need for reform, such as those mentioned by Michelle Lee, the company’s Head of Patents and Patent Strategy, in her call for reform on the company’s Public Policy Blog, should always be considered against a backdrop of the company’s position on the patent system timeline.

Consider this practical effect of the company’s youth – In contrast to many companies operating in “older” industries, Google has never had to wait for a blocking patent to expire before launching a new product or service – a practice that often results in design around efforts that produce new and valuable innovations.

The company’s title for its call for reform – “Patent reform needed more than ever” – is quite bold in this regard.

Second, Google has prima facie monopoly power for online search in the United States

According to Hitwise, Google “accounted for 71.97 percent of all U.S. searches conducted in the four weeks ending Nov. 29, 2008.” This 72% share represents a 14% year-over-year increase and, more importantly, exceeds the benchmark for having sufficient market power to raise prices unilaterally. The #1 result for a Google book search on ‘antitrust 70% market share’ tells us that “[a] market share in excess of 70% generally establishes a prima facie case of monopoly power.” (citing Spirit Airlines v. Northwest Airlines, 421 F.3d 917, 935-936 (6th Cir. 2005)).

Considering this ‘acceptance rate’ of the Google search engine and brand, it comes as no surprise that the company seeks to weaken the power of individual patents. With prima facie monopoly power, patents provide no potential upside to the company. What can strong patent protection offer to Google, as a patent owner? Nothing more than spikes on the end of a giant club it already owns.

Strong individual patents provide an enormous potential downside for Google, though. An individual inventor or small company wielding a powerful patent on a better mousetrap carries significant risk for the company – an upstart search engine that provides better results might start to chip away at that 70% share; strong patent protection could block any efforts by Google to adopt the new technology that searchers have embraced. Furthermore, as a patent owner, strong patent protection on top of it’s 70% market share – the spikes on the end of the club – might be viewed as unsavory facts should Google’s monopoly power ever be questioned.

While the patent reform debate will continue to benefit from the inclusion of all patent system stakeholders, we should always consider Google’s brief history and market position when assigning weight to the company’s calls for reform.